--- Am. Tribal Law ----, 2018 WL 1245999 (Eastern Cherokee Ct.)
Cherokee Court of the Eastern Band of Cherokee Indians.
EASTERN BAND OF CHEROKEE INDIANS, on behalf of the Enrolled Members, by and through DANNY E. DAVIS, in his official capacity as Attorney General for the EASTERN BAND OF CHEROKEE INDIANS, Plaintiff-Intervenor
v.
PATRICK LAMBERT, as Principal Chief of the Eastern Band of Cherokee Indians, in his individual capacity, and on behalf of the Eastern Band of Cherokee Indians, Plaintiff and Realigned Defendants,
and
TRIBAL COUNCIL of the EASTERN BAND OF CHEOKEE INDIANS, RICHARD FRENCH, in his official capacity, TERESA McCOY, in her official capacity, and TOMMYE SAUNOOKE, in her official capacity, Additional Defendants,
and
TRIBAL COUNCIL OF THE EASTERN BAND OF CHEROKEE INDIANS, DENNIS “BILL” TAYLOR, in his official capacity, JERRY BRANDON JONES, in his official capacity, JOSEPH ADAM WACHACHA, in his official capacity, ALBERT ROSE, in his official capacity, TRAVIS K. SMITH, in his official capacity, ALAN B. ENSLEY, in his official capacity, ANITA LOSSIAH, in her official capacity, and BO CROWE, in his official capacity, and MARIE JUNALUSKA, in her official capacity. Defendants.
CSC-17-03/CSC-17-04
|
FEBRUARY 8, 2018
Attorneys and Law Firms
Cloninger, Barbour, Searson, Jones & Cash, PLLC, by W. Scott Jones, for Plaintiff-Realigned Defendant Patrick H. Lambert.
Attorney General Danny E. Davis, for Plaintiff-Intervenor Eastern Band of Cherokee Indians.
Robert O. Saunooke, Carolyn West, and Christian N. Siewers, Jr., for Defendant Tribal Council of the Eastern Band of Cherokee Indians.
Opinion
HUNTER, Justice.
Plaintiff-Realigned Defendant, Patrick H. Lambert (Chief Lambert), appeals from the trial court’s 18 April 2017 and 26 April 2017 Orders. Plaintiff-Intervenor, the Eastern Band of Cherokee Indians (EBCI), by and through the EBCI Attorney General, Danny E. Davis, also appeals from the trial court’s 18 April 2017 Order. In these Orders, the trial court concluded as a matter of law that Defendant, Tribal Council of the EBCI, did not have the authority to suspend Chief Lambert pending impeachment proceedings, but denied all other injunctive and declaratory relief. After careful review, we affirm in part and modify in part.
Background
Chief Lambert was elected Principal Chief of the EBCI in September 2015. In an undated letter believed to have been sent in early October 2016, Tribal Council asked Sharon Blankenship, EBCI Chief Audit Executive, to perform a compliance audit. Attached to that letter were specific areas of investigation concerning, among other things, the hiring, firing, demoting, and transferring of tribal employees; pay raises; and contract approvals. Chief Lambert alleges that this audit was requested in retaliation for an audit he instigated, which resulted in a federal investigation of the Qualla Housing Authority (QHA). He points to the fact that six of the twelve Tribal Council members serve on the QHA Board of Directors.
On 2 February 2017, Tribal Council passed Resolution 502. The Resolution stated that on 18 January 20161, the Office of Internal Audit completed the requested compliance audit and submitted its findings to Tribal Council. The audit found that Chief Lambert violated various statutory provisions, Personnel Policies and Procedures, EBCI Fiscal Management Policies and Procedures, and the Office of the Attorney General Contract Policies and Procedures. The Resolution provided allegations, primarily related to personnel decisions and contract approvals. The Resolution directed the preparation of Articles of Impeachment against Chief Lambert. As drafted, the Resolution suspended Chief Lambert pending impeachment proceedings; however, prior to passage, the Resolution was amended to remove the provision suspending Chief Lambert.
On 6 April 2017, Tribal Council passed Resolution 546, which incorporated seven Articles of Impeachment. The Resolution stated, “the Articles of Impeachment may be amended by Tribal Council at any time until the hearing has convened.” Additionally, the Resolution provided that “the Articles of Impeachment can be amended by Tribal Council to conform to the evidence.” The Resolution set the impeachment hearing for 20 April 2017. Tribal Council also passed Resolution 547, which suspended Chief Lambert until the completion of impeachment proceedings.
On 6 April 2017, the same day Resolutions 546 and 547 were passed, Chief Lambert filed a Complaint in the EBCI trial court against Tribal Council and nine Tribal Council members in their official and individual capacities. Chief Lambert sought declaratory and injunctive relief. On 10 April 2017, Chief Lambert filed an Amended Complaint, again seeking declaratory and injunctive relief. Specifically, Chief Lambert claims: (1) Tribal Council is not validly constituted because a census has not been performed in accordance with the EBCI Charter and Governing Document; (2) Tribal Council has no authority to suspend him pending impeachment; (3) Tribal Council has no authority to remove him subsequent to impeachment; (4) violations of employment policies are not violations of tribal law and, therefore, cannot serve as a basis for impeachment; (5) Tribal Council adopted Resolutions 502, 546, and 547 without proper notice; (6) he was given only fourteen days’ notice of the impeachment hearing in violation of his right to due process; (7) his due process rights will be further violated if Tribal Council, the body who approved the Articles of Impeachment, also serves as the impeachment tribunal; (8) eight of the twelve Tribal Council members cannot sit as fair and impartial members of the impeachment tribunal due to a conflict of interest; (9) Tribal Council members interfered with the compliance audit by issuing subpoenas to tribal employees; and (10) malicious abuse of process on the part of Tribal Council members.
On 10 April 2017, Chief Lambert filed a Motion for Preliminary Injunction, asking the court to
prohibit[ ] [Tribal Council] from proceeding with and acting upon resolutions and/or ordinances not properly noticed for hearing and debated by Tribal Council, and specifically any resolution or ordinance that attempts to suspend the Plaintiff, impeach the Plaintiff, including but not limited to Resolution 546 and 547, or otherwise prevent him from acting in his capacity as the duly elected Principal Chief ....
On the same day, the EBCI Attorney General filed a Motion for Intervention, stating, “[t]he pending action involves the impeachment of the Principal Chief [and] all enrolled members of the Tribe have a vested interest in ensuring that the procedures for the impeachment process are fair and in accordance with the Charter and Laws of the [EBCI].” The Attorney General also filed a Motion for Temporary Restraining Order and Preliminary Injunction, stating, “it clearly appears that the Enrolled Members of the [EBCI] will be irreparably harmed if the impeachment hearing is allowed to go forward in violation of the Charter and Governing Document and the laws set forth in the Cherokee Code.”
The Attorney General sought intervention as Plaintiff in this action, thereby making Chief Lambert a Realigned Defendant. In his Complaint on behalf of the EBCI, the Attorney General raised some of the same issues raised by Chief Lambert. Specifically, the Attorney General claims: (1) Tribal Council is not validly constituted because a census has not been performed in accordance with the EBCI Charter and Governing Document; (2) Tribal Council has no authority to suspend Chief Lambert pending impeachment; (3) Tribal Council has no authority to remove Chief Lambert subsequent to impeachment; (4) violations of employment policies are not violations of tribal law and, therefore, cannot serve as a basis for impeachment; and (5) Tribal Council has, by the actions of some of its members, involved itself in the investigation and can no longer be a fair and impartial arbiter of the facts.
On 17 April 2017, a hearing on the Motion to Intervene and the two Motions for Preliminary Injunction was held before the Honorable Sharon T. Barrett. At the hearing, Judge Barrett orally granted the Attorney General’s Motion to Intervene and subsequently entered a written order, nunc pro tunc 17 April 2017. On 18 April 2017, Judge Barrett entered a written Order on the merits, granting in part and denying in part the Motions for Preliminary Injunction. The Order provided that “the Defendants are expressly prohibited from taking or directing actions to enforce Resolution 547 ... so that the Principal Chief will not have his powers or authorities suspended ....” The Order denied all other relief sought in the Motions, but stayed the impeachment proceedings for ten days.
On 21 April 2017, the Attorney General filed a Petition for Writ of Certiorari and Motion for Stay with this Court. Chief Lambert also filed a Petition for Certiorari with this Court. On the same day, this Court granted the respective requests and stayed the impeachment proceedings until further order of the Court.
Also, on 21 April 2017, additional motions were filed with Judge Barrett, including a renewed Motion for Preliminary Injunction in which Chief Lambert and the Attorney General asserted that a Grand Council of EBCI members had been called on 18 April 2017 and voted to “kill the intent & direction of the Tribal Council” with regard to Resolutions 502 and 546. Chief Lambert claimed that the vote was 958 to 182 in favor of killing Resolution 502. Similarly, the vote was 959 to 183 in favor of killing Resolution 546. After the Grand Council meeting, Tribal Council held a special session on 21 April 2017 and entered Resolution 564, which added five additional Articles of Impeachment. On 24 April 2017, Judge Barrett held a hearing on the motions and entered a written Order on 26 April 2017. She entered findings of fact and conclusions of law relating to the Grand Council as well as other matters that were not specifically addressed in the 18 April 2017 Order. Judge Barrett made the following conclusions of law: (1) tribal sovereign immunity was waived by the Attorney General’s intervention on behalf of the EBCI; (2) Tribal Council did not have the statutory authority to suspend Chief Lambert;2 (3) Tribal Council was permitted to set aside its procedural rules when enacting the Resolutions at issue; (4) the failure to perform the required census does not prevent Tribal Council from entering resolutions, or otherwise performing its duties; (5) the enactments of the Grand Council do not have the force of law; (6) even if the enactments of the Grand Council have the force of law, in this instance, there was insufficient notice to enrolled EBCI members; and (7) all other matters, including whether there was “legislative overreach in conducting impeachment” and whether Tribal Council has the authority to remove Chief Lambert, were not ripe for review.
On 28 April 2017, Chief Lambert filed a Petition for Writ of Certiorari, appealing the 26 April 2017 Order. On 31 April 2017, this Court granted the Petition and expedited judicial review. This Court subsequently entered an Order consolidating Chief Lambert’s and the Attorney General’s cases for review. Therefore, Chief Lambert’s appeals from the 18 April 2017 Order and the 28 April 2017 Order, as well as the Attorney General’s appeal from the 18 April 2017 Order are simultaneously before this Court. Oral arguments were heard on 9 and 10 May 2017. On 10 May 2017, this Court issued an Order, affirming in part Judge Barrett’s Orders, and lifting the stay on impeachment proceedings.
Discussion
I) Interlocutory Nature of Appeal and Justiciability
This case involves an appeal from a preliminary injunction, and is, therefore, interlocutory. A.E.P. Indus., Inc. v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759 (1983) (“A preliminary injunction is interlocutory in nature, issued after notice and hearing, which restrains a party pending final determination on the merits.”). According to Cherokee Code § 7-14(a) (2017), “[proceedings in the courts of the Judicial Branch shall be governed by the North Carolina Rules of Civil Procedure, the North Carolina Rules of Evidence, and the North Carolina Rules of Appellate Procedure.” Pursuant to the North Carolina Rules of Civil Procedure and the North Carolina Rules of Appellate Procedure, there is no appeal of right from an interlocutory order, unless the order affects a substantial right. N.C. Gen. Stat. § 1-277 (2017); N.C. R. App. P. 28(b)(4) (2017). A substantial right is “one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.” Blackwelder v. Dep’t. of Human Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983). “It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context....” Waters v. Qualified Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).
Whether Tribal Council may lawfully proceed to impeach and remove Chief Lambert is a threshold matter in this case. Directly related to this matter are allegations that Tribal Council has the authority to impeach Chief Lambert, but not remove him; Tribal Council may not vote to impeach Chief Lambert until a census has been performed as required by statute; and the Grand Council has prevented any further action because it “killed” Resolutions 502 and 546. We hold that the enrolled members of the EBCI have a substantial right to a lawful impeachment process. Chief Lambert was elected by the enrolled members and, at the 18 April 2017 Grand Council, many of them voted to “kill” Tribal Council’s Resolutions and stop the impeachment process. If we decline to hear this matter at the interlocutory stage, the lawfulness of the impeachment process will remain in question until after its completion. Consequently, we hold that the answers to the complex legal questions raised in this appeal affect a substantial right, and that right will be lost if we do not hear this case interlocutory.
While we elect to hear the case, we recognize that it is not the role of the courts to adjudicate political questions. Powell v. McCormack, 395 U.S. 486, 518, 89 S. Ct. 1944, 1962, 23 L. Ed. 2d 491, 515 (1969). The political question doctrine “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill-suited to make such decisions ....” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S. Ct. 2860, 2866, 92 L. Ed. 2d 166, 178 (1986). “A question may be held nonjusticiable under this doctrine if it involves a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Bacon v. Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2001) (citation and quotation marks omitted). Moreover, the courts should not become involved in “the appointment and removal of public officers.” Walton v. House of Representatives of State of Okla., 265 U.S. 487, 490, 44 S. Ct. 628, 628, 68 L. Ed. 1115, 1116(1924).
This Court does not seek to interfere with the political choices of the EBCI legislative branch — Tribal Council. Whether Chief Lambert should be impeached and removed is a political question that we will not entertain. However, it is within the province of this Court to address matters of statutory interpretation and ascertain the authority granted to the coordinate branches of government by the Charter and Governing Document and the Cherokee Code.3 See Brown v. Flowe, 349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998) (“A question of statutory interpretation is ultimately a question of law for the courts.”); Maready v. City of Winston-Salem, 342 N.C. 708, 716, 467 S.E.2d 615, 620 (1996) (“It is the duty of this Court to ascertain and declare the intent of the framers of the Constitution and to reject any act in conflict therewith.”). Whether Tribal Council may lawfully proceed to impeach and remove Chief Lambert is a matter of statutory interpretation and we limit our review to this justiciable threshold matter.
II) Sovereign Immunity and Intervention
Tribal Council has consistently argued before the lower court and this Court that all claims in this case are barred by sovereign immunity at the preliminary injunction stage. In her 26 April 2017 Order, Judge Barrett concluded that “[i]njunctive relief is not precluded by sovereign immunity herein because the Attorney General has intervened in this action on behalf of Plaintiff Tribe against the Defendants[.]” We affirm Judge Barnett’s ruling and hold that sovereign immunity has been waived, but only with regard to the justiciable issues raised by the Attorney General on behalf of the EBCI. As to the claims raised solely by Chief Lambert, sovereign immunity has not been waived at the preliminary injunction stage.
‘ “As a matter of federal law, [an Indian] tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” ’ Teesateskie v. E. Band of Cherokee Indians Minors Fund, 13 Am. Tribal Law 180, 185 (2015) (quoting Kiowa Tribe of Okla. v. Mfg. Techs. Inc., 523 U.S. 751, 754, 118 S. Ct. 1700, 1702, 140 L. Ed. 2d 981, 985 (1998)). This waiver must be expressly and unequivocally made. Id. Cherokee Code § l-2(i) (2017) (emphasis added) expressly states:
None of the foregoing language is intended to grant a waiver of sovereign immunity against the Eastern Band of Cherokee Indians so that a temporary restraining order or preliminary injunction may be entered against the Eastern Band of Cherokee Indians or any agent or official acting in their official capacity, ex parte or otherwise, unless said action is instituted by the Eastern Band of Cherokee Indians against said agent or employee or official.
Consequently, sovereign immunity is waived at the preliminary injunction stage if the action is instituted by the EBCI. Id. Here, the Attorney General instituted an action as Plaintiff-Intervenor on behalf of the EBCI against Chief Lambert and Tribal Council.
Tribal Council argues that the Attorney General has no authority to intervene and thereby waive sovereign immunity. Under these limited circumstances, we disagree. Pursuant to the North Carolina Rules of Civil Procedure, a prospective intervenor may intervene as a matter of right under the following circumstances:(a) Intervention of right.--Upon timely application anyone shall be permitted to intervene in an action:
(1) When a statute confers an unconditional right to intervene; or
(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
N.C. R. Civ. P. 24(a)(l)-(2). In the order signed nunc pro tunc 17 April 2017, Judge Barrett determined that the Attorney General had the right to intervene under Rule 24(a)(1) and (a)(2). We need not address whether the Attorney General has the statutory, unconditional right to intervene under Rule 24(a)(1) because we hold that, under the unique circumstances of this case, he has the right to intervene under Rule 24(a)(2).
“Both the ‘impair or impede’ and the ‘adequately represented’ provisions of ... Rule 24(a)(2), involve factual determinations to be made on a case-by-case basis.” Wichnoski v. Piedmont Fire Prot. Sys., LLC,___ N.C. App.___,___, 796 S.E.2d 29, 38 (2016) (emphasis added). The Official Comment to Rule 24 states that, under subsection (a)(2), “the harm to the intervenor’s interest is to be considered from a ‘practical’ standpoint, rather than technically.” Here, we hold that the EBCI has an inherent interest in the impeachment proceedings that is not adequately represented by Chief Lambert or Tribal Council, and the disposition of the action may practically impair the EBCI’s ability to protect that interest. The controversy between Chief Lambert and Tribal Council is, at its core, political in nature. All enrolled members of the EBCI, including those who are in favor of impeachment and those who are not, are inherently interested in the legitimacy of the impeachment process itself, and the only means by which they can act to protect that interest is through the Attorney General’s intervention in this matter. See generally Wachovia Bank & Trust Co. v. Morgan, 9 N.C. App. 460, 467, 176 S.E.2d 860, 864 (1970) (stating the Attorney General is a “representative of the public interest”). From a practical standpoint, if we do not allow this intervention, the resolution of the threshold matter in this case — the authority of Tribal Council to lawfully proceed with the impeachment proceedings — would not be reached until after the impeachment process has been completed. Consequently, the EBCI’s interest in an impeachment process that is deemed lawful before it occurs would be impaired.
Our holding in this case, and its precedential value, is limited to the unique and complex facts before us and should not be interpreted to mean that the Attorney General has the right or duty to intervene in any case where he or she sees a general tribal interest. The right to intervene must be determined on a case-by-case basis. As stated above, we will only address the issues raised by the Attorney General as they pertain to the justiciable threshold matter — the authority of Tribal Council to lawfully proceed with the impeachment proceedings. Review of all other issues raised by the Attorney General or Chief Lambert is not appropriate at this time.
III) Standard of Review
Based on the foregoing, we will review the threshold matter in this case at the preliminary injunction stage. In so doing, we are “bound by the laws, customs, traditions, and precedents of the [EBCI]. If there is no applicable Cherokee law, the Judicial Branch shall look next to Federal law, then to North Carolina law, and finally to the law of other jurisdictions for guidance.” Cherokee Code § 7-2 (2017). “Federal decisions have uniformly characterized the grant of interim relief as an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in [the] limited circumstances which clearly demand it.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991) (citation and quotation marks omitted) (alteration in original). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374, 172 L. Ed. 2d 249, 261 (2008). On appeal from a denial of a preliminary injunction, appellate courts review factual findings for “clear error” and legal conclusions are reviewed de novo. Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011).
IV) Authority to Remove Subsequent to Impeachment
The Attorney General argues that Tribal Council has the authority to impeach Chief Lambert, but not to remove him from office. Judge Barrett did not rule on this issue. We hold that a declaratory judgment should have been entered, concluding as a matter of law that Tribal Council has the authority to remove Chief Lambert subsequent to impeachment.
“The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” ’ United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S. Ct. 1026, 1031, 103 L. Ed. 2d 290, 299 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S. Ct. 3245, 3250, 73 L. Ed. 2d 973, 981 (1982)). “In construing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results.” State ex rel. Com’r of Ins. v. N.C. Auto. Rate Admin. Office, 294 N.C. 60, 68, 241 S.E.2d 324, 329 (1978).
Section 22 of the EBCI Charter and Governing Document provides: “Any officer of the Eastern Band of Cherokee Indians who violates his oath of office, or is guilty of any offense making him ineligible to hold said office may be impeached by a two-thirds vote of council.” While the language of Section 22 does not include the word “remove,” no other section of the Code provides for a separate removal process after impeachment. To hold that Tribal Council may impeach Chief Lambert, but neither Tribal Council nor any other tribal body may remove him, would create an untoward result. Impeachment would amount to mere censure, and a Principal Chief could not be removed from office no matter how improper or illegal his actions are. If, for example, the Principal Chief commits a criminal offense that results in incarceration, according to the Attorney General’s position, he or she could be impeached but not removed from office. That is certainly not the result that the drafters of the Charter and Governing Document intended.
The Attorney General points out that the United States Constitution, Article I, Sections 2-3, grants the House of Representatives the power to impeach and the Senate the power to remove, and the majority of states have modeled that process in their respective constitutions. In essence, he claims that because the EBCI Charter and Governing Document does not explicitly designate the authority to remove to a separate body, unlike the United States Constitution, that removal can never occur. This argument would be more persuasive if the EBCI had modeled its Charter and Governing Document on the United States Constitution and created a bicameral legislature with separate powers. Moreover, in the United States Constitution the separation of powers is made clear, as is the framers’ intent to divide those powers so one body does not have absolute authority over a matter of such import. Nixon v. United States, 506 U.S. 224, 234, 113 S. Ct. 732, 738, 122 L. Ed. 2d 1, 12 (1993) ( “The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments[.]”). Therefore, a two-step process of impeachment by one body, and removal by another, is clearly set out in the United States Constitution, and the rationale is based on notions of fairness; however, that process is simply not codified in the EBCI Charter and Governing Document. The Attorney General notes that in 1984, a constitution was drafted that gave Tribal Council explicit authority to remove the Principal Chief, but the constitution did not pass a referendum vote. We interpret that proposal as evidence of an intent to clarify the existing law, not to change it.
In examining other tribal codes and constitutions, some explicitly provide for a two-step impeachment and removal process, but others grant exclusive control to the legislative branch to remove members of tribal leadership. The Constitution of the Southern Ute Indian Tribe, Article V, Section 1, states that any “elected official of the tribe may be removed from office by the affirmative vote of not less than four (4) members of the tribal council ....” The Constitution does not provide for a separate impeachment process. The Constitution of the Absentee-Shawnee Tribe of Indians of Oklahoma, Article VII, Section 1, states that “[e]ach elected body of the government shall have the power to remove any of its members for justifiable cause by an affirmative vote of three (3) of its members.”
Moreover, to hold that one body has the sole authority to impeach and remove the Principal Chief is in accord with Cherokee Code § 7-10 (2017) (Removal by Impeachment), which states that “[t]he Ethics Commission shall have the sole power to remove Judges and Justices by impeachment, and any other power delegated by law.” Section 7-10 grants one body, the Ethics Commission, the sole authority to remove judges by impeachment. Additionally, Cherokee Code § 161-3(d)(3) (2017) states that “[n]o person shall ever be eligible to file for or serve” as Principal Chief if that “person has been impeached by the Tribal Council ....” This statute speaks in terms of prospective office holders, but it evinces the drafters’ intent to prohibit a person from serving as Principal Chief if that person has been previously impeached.
Despite the absence of the word “remove,” we hold that the drafters of the EBCI Charter and Governing Document intended for the Principal Chief, or any other tribal officer, to be removed via the impeachment process — a two-thirds vote of Tribal Council. To hold otherwise would create an absurd result. Additionally, this decision is in accord with other provisions of the Cherokee Code and is in keeping with the process seen in other tribal governments.
V) The EBCI Census
The Attorney General contends that the Cherokee Code requires the EBCI to conduct a census every ten years, and the failure of the EBCI to conduct a census since 2001 invalidates the actions of Tribal Council. Judge Barrett rejected this argument, concluding as a matter of law that “While the provisions of the Cherokee Code call for a census to be taken every ten years, no showing supports the entry of an injunction against the Tribal Council to prevent their continued performance of their duties and responsibilities as legislators until the process is completed.” We affirm the trial court’s decision.
Section 19 of the Charter and Governing Document and Cherokee Code § 117-12 (2017), provide that a census must be completed every ten years. In their deliberations, Tribal Council members vote on a “weighted basis, with the weight of each vote determined by the population represented by each Council member.” Cherokee Code § 117-12. Undoubtedly, the census serves an important purpose, “to provide equal representation to all members of the [EBCI.]” Id; see Reynolds v. Sims, 377 U.S. 533, 560-61, 84 S. Ct. 1362, 1381, 12 L. Ed. 2d 506, 526 (1964) (“[T]he fundamental principle of representative government ... is one of equal representation for equal numbers of people[.]”).
It is undisputed that a census has not been performed since 2001, approximately sixteen years ago. Consequently, the Tribal Council members’ votes may not be appropriately weighted. However, there is no provision in the Charter and Governing Document or the Cherokee Code that would mandate the cessation of all voting until a census has been completed, and the Attorney General has failed to point to any legal authority that would require this Court to mandate a moratorium on legislative action. The Attorney General cites Lay v. Cherokee Nation, 1 Am. Tribal Law 23 (1998), where the court struck down a legislative act that deferred reapportionment, contrary to the tribal constitution. Here, Tribal Council did not pass legislation that would delay the census contrary to its Charter and Governing Document. A census simply has not been done, and we see no basis for ceasing all legislative operations until a census is completed. The Attorney General argues that Tribal Council could continue to vote on other matters, just not the impeachment. We fail to see the logic in that argument. If Tribal Council is violating the law by voting on the impeachment, then it would likewise be violating the law by voting on any other matter.
In sum, we recognize that there is a statutory mandate that a census be performed every ten years; however, there is no express or implied provision that would require all legislative action to cease if that census is not performed.4 We affirm the trial court’s determination that Tribal Council may continue to perform its duties despite the government’s failure to perform the census.
VI) Authority of the Grand Council
On 18 April 2017, a Grand Council of EBCI members voted to “kill” Resolutions 502 and 546. In his Amended Complaint for Declaratory and Injunctive Relief, the Attorney General requested a preliminary injunction and a declaratory judgment, asking the court to “declare what authority the Grand Council has to rescind Tribal Resolutions 502 and 546.” After making extensive findings of fact, Judge Barrett entered the following conclusion of law:
Although the convening of Grand Council is also a custom, tradition and precedent of the Eastern Band of Cherokee Indians, tribal law does not detail the procedures that govern, nor is it provided in tribal law that Grand Council enactments have the force of law. At this time, Plaintiffs have not shown that Cherokee custom, tradition or precedent give the enactments of a Grand Council the force of law, especially in the absence of subsequent action thereon by the Tribal Council.
(Emphasis added). The trial court did not enter a declaratory judgment and left the issue pending until further proceedings. The trial court further concluded that even if the Grand Council’s enactments have the force of law, the 18 April 2017 Grand Council was not conducted in accordance with the laws, customs, traditions, and precedents of the EBCI because there was insufficient notice to the enrolled members, as well as other procedural irregularities. We find that Judge Barrett’s reasoning is sound; however, a declaratory judgment should have been entered, concluding as a matter of law that the enactments of Grand Council do not have the force of law unless they are adopted by Tribal Council. We need not address the alternative conclusion regarding the notice deficiencies and procedural irregularities.
Section 10 of the Charter and Governing Document states that “[t]he Principal Chief shall have the right to call a Grand Council of all enrolled members to attend and he shall preside over such meeting.” There is no other provision in the Charter and Governing Document or the Cherokee Code regarding Grand Councils. Judge Barrett heard extensive testimony regarding the history of EBCI Grand Councils and entered findings of fact, which are not challenged on appeal. The findings relevant to this issue are as follows:
(1) The Eastern Band of Cherokee Indians has held Grand Councils on multiple occasions during its long history. These Grand Councils have been assemblies of enrolled members that were called by Principal Chiefs for the purpose of soliciting public input on questions relating to the operation and policies of tribal government.
...
(3) Grand Council was called in 1979 by Principal Chief Crowe to consider a proposal to adopt a new Constitution for the Eastern Band of Cherokee Indians.
(4) Conflicting evidence was offered concerning the wording of the written guidelines and rules that governed the 1979 Grand Council. The rules attached as Exhibit C to the Denise Walkingstick affidavit included, among other things, the following provisions:
a. Rule 4: “A quorum shall consist of at least 500 eligible voting members present.”
b. Rule 8: “Passed Resolutions shall be presented to the Executive and Legislative branches of Government within 30 days. This shall be done in a Special session of the Tribal Council called by the Chief.”
c. Rule 10: “All Resolutions that are passed in Grand Council will become law within 60 days. The intent of these Resolutions shall be carried out in ordinance form by Tribal Council, and ratified by the Chief.”
d. Rule 11: “Any law/ordinance passed by Tribal Council and ratified by the Principle (sic) Chief can be killed by 2/3 majority vote of the Grand Council.”
e. Rule 12: “All Resolutions ratified into law shall be incorporated into the Cherokee Code Book.”
(6) Multiple Grand Councils were called during the mid-1990’s by Principal Chief Dugan. No quorum was achieved for the Grand Councils in February 1996 and October 1996.
(7) The written guidelines and rules for the February 1996 Grand Council include, among other things, the following provisions that were nearly identical to the 1979 Rules:
a. Rule 4: “A quorum shall consist of at least 500 eligible voting members present.”
b. Rule 8: “Passed Resolutions shall be presented to the Executive and Legislative branches of Government within 30 days. This shall be done in a special session of the Tribal Council called by the Chief.”
c. Rule 10: “All Resolutions that are passed in Grand Council will become law within 60 days. The intent of these Resolutions shall be carried out in ordinance form by Tribal Council, and ratified by the Chief.”
d. Rule 11: “Any law/ordinance passed by Tribal Council and ratified by the Principal Chief can be killed by 2/3 majority vote of the Grand Council.”
e. Rule 12: “All Resolutions ratified into law shall be incorporated into the Cherokee Code Book.”
(8) No finding is made at this time that there is historical precedent for an enactment at Grand Council being enforced as the law of the Eastern Band of Cherokee Indians. Further, the evidence is conflicting about whether there is a custom and tradition of enacting law by way of a Grand Council. Some credible evidence indicates that Grand Councils have been regarded as an opportunity for the Tribe to exercise direct democracy, but other credible evidence indicates that the purpose of Grand Council has been to provide guidance to elected officials about the views of the enrolled members on public questions.
(13) Approximately one hour after the [18 April 2017] Grand Council was called to order, the Plaintiff Chief announced that written Rules of Procedure for the Grand Council had been adopted and developed from the rules of the 1979 and 1995 Grand Councils. They were then read to the assembly. These Rules of Procedure provided, upon other things, as follows:
a. Rule 3: “A quorum for any session shall be those tribal members present at the time of the meeting.”
b. Rule 20: “All resolutions that are passed in Grand Council will become law immediately upon proper confirmation and ratification by the Grand Council, and service of the confirmed and ratified resolution on the Tribal Counsel [sic] Chairman and Attorney General of the Eastern Band of Cherokee Indians.”
c. Rule 21: “Any act of Tribal Council can be rescinded and killed by a majority vote of the Grand Council.”
d. Rule 22: “All laws confirmed and ratified by the Grand Council shall be incorporated into the Cherokee Code Book where appropriate.”
e. Rule 24: “Any cost of Grand Council is hereby approved by the Grand Council assembled, and includes direction for required Tribal budget amendments.”
(14) These rules plainly vary from the rules of prior Grand Councils in numerous significant ways, even though the Plaintiff Chief repeatedly stated at the Grand Council that these rules were brought forward and modeled upon the rules and procedures of two prior Grand Councils. Among other things, these rules provide no role whatsoever for the Tribal Council in the process of adopting the resolutions of Grand Council as ordinances. Without acknowledging the significant changes in the established prior procedures for Grand Council, Plaintiff Chief expressed his view that the Grand Council had the overriding power to enact laws.
(20) [T]he Court does not find that the Grand Council held on April 18, 2017 was conducted in accordance with the laws, customs, traditions or precedents of the Eastern Band of Cherokee Indians. Instead, the Grand Council represented a display of public support by numerous enrolled members of the Plaintiff Tribe, including many friends and supporters of Plaintiff Chief, for him and for the measures that were considered.
(Emphasis added).
Section 10 of the Charter and Governing Document allows the Principal Chief to call a Grand Council, but it does not grant any authority to that body. All governing authority is granted to the executive and legislative branches in Section 1 of the Charter and Governing Document, which states that “[t]he officers of the Tribe shall consist of a Principal Chief, Vice-Chief and twelve members of Council ... Thus, Tribal Council enacts laws pursuant to Section 23 of the Charter and Governing Document, and the Principal Chief ratifies or vetoes them pursuant to Section 13 of the Charter and Governing Document. The parties in this case have not shown that an EBCI Grand Council has ever “killed” Tribal Council Resolutions, or passed its own Resolutions that had the force of law absent Tribal Council adoption.
Based on the undisputed findings above, we hold that Grand Councils serve an important function — to provide an opportunity for the enrolled members to express their position on matters that affect them — but Grand Councils do not have the ability to unilaterally create laws or abolish them.5 We further hold that a declaratory judgment should have been entered, concluding as a matter of law that the enactments of Grand Council do not have the force of law unless they are adopted by Tribal Council.
Conclusion
Based on the foregoing, we hold that Tribal Council has the authority to remove Chief Lambert from office upon his impeachment; the failure to perform a census as required by statute does not prevent Tribal Council from voting to impeach and remove Chief Lambert; and the Grand Council called on 18 April 2017 did not have the authority to “kill” Resolutions 502 and 546. Consequently, we affirm in part and modify in part the trial court’s Orders.
AFFIRMED in part, MODIFIED in part.
Justice Waddell concurs.
Justine Pipestem dissents by Separate opinion.
Chief Justice Pipestem, Dissenting.
Brenda Toineeta Pipestem Presiding Chief Justice
In this case, the Court is called upon to decide a matter of first impression as to the authority of the Attorney General (“AG”) to intervene as the Tribe on behalf of the public interest and re-align the parties to bring suit against the Principal Chief and Tribal Council, thereby waiving tribal sovereign immunity at the preliminary injunction stage of this case.
The threshold jurisdictional question of whether there was a waiver of tribal sovereign immunity is raised sua sponte by the Court on appeal. Tribal Council argued below that the AG was without the authority to bring suit as the Tribe and waive sovereign immunity. Although Tribal Council did not appeal the trial court’s decision permitting the AG to intervene in this case, it is the duty of this Court to ensure that it has proper jurisdiction.
I respectfully disagree with the majority’s decision that “under the unique circumstances of this case,” the AG has the right to intervene under Rule 24(a)(2) of the North Carolina Rules of Civil Procedure. Although not addressed in the majority’s decision, I also disagree with the lower court’s decision to permit the AG to intervene in matters of the public interest under Rule 24(a)(1). Absent the AG’s authority to intervene, this Court is without jurisdiction at the preliminary injunction stage to hear any of the issues raised by the parties because there has been no waiver of tribal sovereign immunity.
DISCUSSION
Under Cherokee Code § 1-2(i) (2017), and in conformity with Teesateskie v. E. Band of Cherokee Indians Minors Fund, 13 Am. Tribal Law 180 (2015), sovereign immunity is waived at the preliminary injunction stage if the court action is instituted by the Tribe. In the matter before the Court, the AG seeks to intervene as the Tribe under the authority of Cherokee Code § 114-2 (2017), thereby re-aligning the parties such that the Tribe is a plaintiff, and the Principal Chief and Tribal Council are co-defendants. Tribal Council argues that the AG is without the power to intervene as the Tribe and to bring an action against Tribal Council without its consent. The Principal Chief does not object to the AG’s motion to intervene.
It is my interpretation of the laws of the Eastern Band of Cherokee Indians (“EBCI”), and the North Carolina Rules of Civil Procedure as adopted by the Cherokee Code, that the AG is without the authority to intervene as the Tribe in the public interest and bring suit against the Principal Chief and Tribal Council without their express consent and waiver of sovereign immunity. Under N.C. R. Civ. P. 24(a)(l)-(2), a “prospective intervenor” is permitted to intervene in the following circumstances:
(1) When a statute confers an unconditional right to intervene; or
unless the applicant’s interest is adequately represented by existing parties.
Judge Barrett held that the AG had a right to intervene in this case pursuant to Rule 24(a)(1) and 24(a)(2). I disagree and will address each basis in turn.
No Intervention by Right Under Rule 24(a)(1) of the North Carolina Rules of Civil Procedure
The AG is not referenced in the EBCI Charter and Governing Document (as amended 1995) (“Charter”). Section 1 of the Charter grants all governing authority to the executive and legislative branches and expressly states that “[t]he officers of the Tribe shall consist of a Principal Chief, Vice-Chief and twelve members of Council .... In 2016, the Tribe established the Department of Justice and codified the scope of authority and duties of the AG. Cherokee Code § 114-1 (b) (2017) states, “[t]he Attorney General... shall serve as the Tribe’s chief legal counsel. The Attorney General shall be appointed by the Principal Chief and shall serve at the discretion of the Principal Chief.” The specific duties of the AG are as follows:
(a) To prosecute or provide for the prosecution and defend or provide for the defense of all actions in which the [ ]EBCI, including any of its departments, subdivisions, enterprises, boards, committees, or programs shall be interested, or a party, and to appear for the EBCI in any other court or tribunal in any cause or matter, civil or criminal, in which the EBCI may be a party or interested. The primary source for all legal services for the EBCI is the Attorney General.
(b) To engage and manage outside legal resources as are reasonably necessary to protect the best interests of the EBCI and to maintain autonomy for Tribal entities and subdivisions where required by Tribal law.
(c) To direct and manage all lawyers within the Department of Justice, including the civil and criminal divisions.
(d) To consult with legal counsel for the Tribal Council and legal counsel for the Principal Chief to ensure that there are open lines of communication among all legal service providers engaged or employed by the EBCI.
(e) To engage outside independent counsel for such boards as is necessary to provide for the fair administration of justice, not inconsistent with the powers granted to boards or enterprises by the Cherokee Code.
(f) To investigate a discrimination complaint filed by a covered employee against the Office of Internal Audit in accordance with Cherokee Code Section 96-6(B).
Cherokee Code § 114-2 (2017).
Although Judge Barrett found that the AG had the right to intervene under Rule 24(a)(1), citing Cherokee Code § 114-2, the plain language of this statute does not provide the AG an unconditional right to intervene on behalf of the public interest in the Cherokee Court. Instead, review of the Cherokee Code reveals a limited right of the Tribe to intervene in only two specific instances in cases before the Cherokee Court: (1) a tribal agency may intervene in a pending maltreatment proceeding for the purpose of filing a motion to terminate parental rights pursuant to Cherokee Code § 7B-1103(b) (2017), and (2) the Tribe may intervene in any mortgage foreclosure proceeding affecting an interest in tribal land pursuant to Cherokee Code § 45-10 (2017).
As the “chief legal counsel” for the EBCI, the AG has an attorney-client relationship representing, as provided in Cherokee Code § 114-2(a), the tribal government — including its departments, subdivisions, enterprises, boards, committees, or programs — not the general membership. Under Sections 1 and 2 of the Charter, the tribal government and the general membership are represented by the Principal Chief, Vice-Chief, and the twelve members of Tribal Council.
Under Cherokee Code § 114-2(a), the AG has the duty to “prosecute or provide for the prosecution and defend or provide for the defense in all actions” in which the client — the EBCI tribal government — “shall be interested, or a party.” Again, nothing in this statement permits the AG, in his official capacity or on behalf of the tribal membership, to bring suit as the Tribe against the Principal Chief and Tribal Council, thereby imposing his own views on the client. See generally Chun v. Bd. of Trustees of Employees’ Ret. Sys. of State of Hawaii, 87 Hawai’i 152, 171, 952 P.2d 1215, 1234 (1998) (holding that the AG, may not, “in her sole discretion, so control the course of litigation as to advance her view of the ‘public welfare’ when it squarely conflicts with the substantive position taken by the policy-making state governmental instrumentality whom she represents as a named party to the litigation”). Further, the plain language of the duty of the AG in Cherokee Code § 114-2(a) (emphasis added) to “appear for the EBCI in any other court or tribunal in any cause or matter, civil or criminal, in which the EBCI may be a party or interested” does not equate to giving the AG the power to decide on his own accord to bring an action on behalf of the Tribe, but rather directs the AG to be the legal representative of the tribal government in all courts. This interpretation is supported by the construction of Cherokee Code § 114-2(a) where the last sentence of that section reconfirms the attorney-client relationship between the AG and the Tribe: “The primary source for all legal services for the EBCI is the Attorney General.”
Further, it appears that the drafters of Cherokee Code § 114-2 modeled N.C. Gen. Stat. § 114-2 (2017), which provides the authority and duties granted to the North Carolina AG. However, N.C. Gen. Stat. § 114-2 provides the North Carolina AG express authority and duties that are not present in Cherokee Code § 114-2. Specifically, N.C. Gen. Stat. § 114-2(8)(a) (emphasis added) provides that the AG has the authority
[t]o intervene, when he deems it to be advisable in the public interest, in proceedings before any courts, regulatory officers, agencies and bodies, both State and federal, in a representative capacity for and on behalf of the using and consuming public of this State. He shall also have the authority to institute and originate proceedings before such courts, officers, agencies or bodies and shall have authority to appear before agencies on behalf of the State and its agencies and citizens in all matters affecting the public interest.
The plain language of this statute confers the North Carolina AG an unconditional right to intervene in the public interest on behalf of the consuming public. Consequently, the North Carolina AG has the statutory right to intervene under Rule 24(a)(1) of the North Carolina Rules of Civil Procedure. There is no corresponding language in the Cherokee Code granting this same authority to the tribal AG. The words “public interest” do not appear in Cherokee Code § 114-2. Since Cherokee Code § 114-2 mirrors N.C. Gen. Stat. § 114-2 in other respects, it appears that the drafters of the Cherokee Code made a conscious decision not to grant the AG the authority to act on behalf of the public interest.
Moreover, had the drafters intended to convey such authority on the AG without express language, it is only logical to assume that they would have followed their established drafting precedent set in Cherokee Code Chapter 45 (Recording and Foreclosure of Leasehold Interests), which also appears to have been modeled after Chapter 45 of the North Carolina General Statutes. Cherokee Code § 45-29 (2017) (emphasis added) states that where there are
[i]ssues regarding recording, sales and foreclosures of mortgages and deeds of trust not expressly addressed in this chapter shall be resolved by applying relevant sections of Chapter 45 of the North Carolina General Statutes, to the extent that application is consistent with Tribal law. The application of North Carolina state law shall not be deemed a waiver of sovereign immunity of the Tribe, which is hereby reserved.
Cherokee Code § 114-2 does not include similar language incorporating North Carolina law. Consequently, the provision of N.C. Gen. Stat. § 114-2(8)(a) that gives express authority to the North Carolina AG to act in the public interest cannot be incorporated into Cherokee Code § 114-2.
In sum, Cherokee Code § 114-2 sets out the AG’s specific duties, none of which pertains to representing the public interest or the general membership of the Tribe. Instead, this section is clear that the duty of the AG is to represent the Tribe in a legal capacity, not as an officer with the authority to bring actions in his official capacity or on behalf of the general membership. Therefore, based on the above analysis, I do not find that the AG has a right to intervene under Rule 24(a)(1).
No Intervention by Right Under Rule 24(a)(2) of the North Carolina Rules of Civil Procedure
The majority relies on Rule 24(a)(2) to permit the AG to intervene and bring suit as the Tribe on behalf of the tribal citizenry against the Principal Chief and Tribal Council under the limited circumstances of this case. Rule 24(a)(2) (emphasis added) provides for a non-statutory right to intervene
[w]hen the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
In their decision, the majority stated “[f]rom a practical standpoint, if we do not allow this intervention, the resolution of the threshold matter in this case — the authority of Tribal Council to lawfully proceed with the impeachment proceedings — would not be reached until after the impeachment process has been completed. Consequently, the EBCI’s interest in an impeachment process that is deemed lawful before it occurs would be impaired.” These considerations by the majority do not answer the question as to whether the AG “is so situated” under tribal law to intervene as the Tribe on behalf of the tribal membership and waive tribal sovereign immunity. The majority does not discuss the basis of the AG’s authority to act as the Tribe to protect the interests of the tribal membership, but merely concludes that “the only means by which [tribal membership] can act to protect [its interest in a lawful impeachment process] is through the Attorney General’s intervention in this matter.” The majority cites Wachovia Bank & Trust Co. v. Morgan, 9 N.C. App. 460, 467, 176 S.E.2d 860, 864 (1970) where the North Carolina appellate court stated that the AG is a “representative of the public interest” as general support for the proposition that the AG has authority to intervene on behalf of the tribal membership. As discussed above, this is true for the North Carolina AG, who has the explicit statutory duty to represent the public interest. The Charter and Cherokee Code provide no authority to the AG to represent the public interest or to act as the Tribe on behalf of the tribal membership. As discussed above, the Tribe did not incorporate North Carolina law into Cherokee Code § 114-2 as it pertains to the role, authority, and duties of the AG.
Moreover, there is no recognition or grant of common law authority to the AG either in the Charter or in the Cherokee Code; therefore, the AG cannot rely upon common law to intervene as the Tribe in the public interest. This lack of common law authority is further supported by Tribal Council’s argument that prior to the codification of Cherokee Code § 114, the AG had to obtain prior approval from Tribal Council before commencing any action on behalf of the Tribe.
A review of other state laws outside of North Carolina reveals that where the power of a state AG is enumerated by statute or in the constitution and there is an absence of language authorizing the AG to take action regarding matters affecting the public interest, courts generally refuse to recognize common law powers of the AG to bring actions on behalf of the public interest. See, e.g., Arizona State Land Dep’t v. McFate, 87 Ariz. 139, 142, 348 P.2d 912, 914 (1960); State ex rel. Atty. Gen. v. Burning Tree Club, Inc., 301 Md. 9, 14, 481 A.2d 785, 787 (1984). The trend in other states is for the courts not to recognize common law powers of the office of the AG unless necessary, either because the common law is adopted by statute or because the office of the AG is so vaguely defined that the AG could not operate without incorporation of the common law. See, e.g., State ex rel. McKittrick v. Missouri Pub. Serv. Comm’n, 352 Mo. 29, 35, 175 S.W.2d 857, 861 (1943) (holding that the AG had common law powers because a statute adopted the common law); Ex parte King, 59 So. 3d 21, 25 (Ala. 2010) (noting that Alabama statute adopted the common law powers of the AG); Botelho v. Griffin, 25 P.3d 689, 692 (Alaska 2001) (citing an Alaska statute that conferred the “usual” powers on the Alaska AG); Hunt v. Chicago & Dummy Ry. Co., 20 Ill. App. 282, 288 (Ill. App. Ct. 1886), (“The constitution of 1818 recognized the existence of the office ... but made no provision as to the nature of his duties or the mode of his appointment”), rev’d sub nom. on other grounds, Hunt v. Chicago, Horse & Dummy R. Co., 121 Ill. 638, 13 N.E. 176 (1887); Darling Apartment Co. v. Springer, 25 Del. Ch. 420, 22 A.2d 397, 405 (1941) (Rodney J., concurring) (noting that the Delaware Constitution made no mention of the duties of the AG).
This is not the situation before this Court as the Tribe has defined the powers and duties of the AG in Cherokee Code § 114-2. Again, the AG, who is not an elected official but the Tribe’s chief legal counsel, is empowered to prosecute actions or defend against all actions in which the EBCI tribal government, not the tribal membership, is interested or a party.
Moreover, the AG is also required under Cherokee Code § 114-2(d) and Cherokee Code § 114-4 (2017) to consult with legal counsel for the Principal Chief and Tribal Council “to ensure coordinated and efficient provision of legal services to the EBCI” among all legal service providers, which supports the argument that there is a limit on the authority granted to the AG to intervene and bring suit against the Principal Chief and Tribal Council without their express consent.
The Principal Chiefs attorney claims that the Principal Chief “approved” of the AG’s intervention in this case, but the AG does not include this in his filings with the Court. A review of the transcripts from both the 17 April 2017 and 6 April 2017 hearings show that the Principal Chief did not object to the AG’s motion to intervene and bring suit against the Chief and Tribal Council. The Principal Chief standing alone as a re-aligned co-defendant with Tribal Council, and in contravention of the powers and duties granted to the AG, cannot authorize the AG to intervene as the Tribe in the public interest in an action instituted on behalf of the general membership and in his official capacity as chief legal counsel. The AG stated at the oral arguments before this Court that he could never get the consent to sue Tribal Council. He may or may not be correct, but according to the laws of the Tribe that decision belongs to Tribal Council, not the AG or this Court.
In sum, I find no authority for the AG to intervene in the public interest or to bring an action as the Tribe in his official capacity or on behalf of the general membership. Therefore, I dissent from the majority’s decision to permit the AG to intervene as the Tribe on behalf of the tribal membership against the Principal Chief and Tribal Council.
CONCLUSION
Although I completely agree with the majority’s statement that the “EBCI has an inherent interest in the impeachment proceedings,” I strongly disagree that the answer is for the Court to craft law that empowers the AG to intervene in the public interest and bring suit against the Principal Chief and Tribal Council as the Tribe on behalf of the citizenry. To allow otherwise is to usurp the authority of the elected tribal government officials and to shift the power of the legislature to the judiciary. However, even with the majority’s decision in this case, going forward the citizenry of the EBCI will continue to be reliant on exercising their rights through the ballot every two years, thereby determining on an official by official basis whether the actions by Tribal Council and/or Principal Chief are consistent with protecting the public interests of the tribal citizenry.
All Citations
--- Am. Tribal Law ----, 2018 WL 1245999
Footnotes |
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This appears to be a typographical error in the Resolution. The record indicates that the audit was completed on 18 January 2017. |
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Tribal Council has not appealed from this Order and does not contend that Judge Barrett erred in reinstating Chief Lambert pending impeachment. |
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The EBCI does not have a Constitution; however, the Charter and Governing Document and the Cherokee Code grant authority to the branches of tribal government. |
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Whether an action may be brought to compel the tribal government to perform a census is not an issue before us. |
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Cherokee Code § 161-9 (2017) provides an opportunity for direct democracy via the referendum process. |
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